As the dust begins to settle on the Donald Sterling controversy with the $2 billion sale of the Los Angeles Clippers, there is an opportunity to answer a question raised by some during the ordeal: what happened to freedom of speech?

Even people who condemn the racism in Sterling’s comments ask: how can a person be punished and forced to sell his team for opinions shared in private? Does not the forced (or coerced) sale of his basketball team violate the man’s freedom of speech? Somewhere along the way, did we all lose one of our American fundamental rights?

Everyone can breathe an initial sigh of relief – the First Amendment is still there protecting you! His case does not present an erosion of our fundamental American rights.

In order to understand how this can be, one needs to understand a basic limitation on our freedom of speech. Our freedom of speech arises from the text of the First Amendment which reads, in relevant part, “Congress shall make no law . . . abridging the freedom of speech.” Those first five words present the most basic limitation on our rights. The protections only apply to the government. In other words, with some limited exceptions (for example, “obscenity” or yelling fire in a crowded theater), you are free to express your opinions without fear of governmental retaliation. You cannot be thrown into jail for criticizing the President or, in the case of Sterling, expressing a racist opinion.

Thus, Sterling’s situation did not violate his First Amendment rights. There were no FBI or LAPD investigations directed at Donald Sterling. The District Attorney did not threaten criminal charges. The government did not coerce the sale of the Clippers by threatening civil legal action. In fact, here, the freedom of speech functioned properly and Sterling’s comments, for better or worse, were protected by the First Amendment.

The First Amendment, however, offers no protection in the “Court of Public Opinion.” As a result, once Donald Sterling admitted that he made those comments, there were no automatic protections for his speech (i.e., if it were all a lie, he would be protected by defamation laws). Legally speaking, public retaliation against Sterling was legal. After all, the players, fans, sports commentators, and even the corporate sponsors who all vehemently condemned Sterling’s speech share the same First Amendment protections as Sterling and are equally entitled to express their views on the matter.

Likewise, the First Amendment provided no protection against the rest of the NBA’s owners taking action against Sterling. The NBA’s constitution, which is an agreement amongst the owners on how to operate the league, may have provided some protection for Sterling’s speech and prevented the coerced sale of the team, but once the league’s finances were threatened by corporate sponsors cancelling sponsorship deals, players threatening to boycott nationally televised playoff games which would jeopardize advertising revenue, and fans refusing to attend games which impacted ticket sales, Sterling’s organizational protections quickly disappeared. Acknowledging this reality, he dropped his legal defense to the owners’ efforts to force him out of the league (and his $1,987,500,000 profit on the sale of the team likely helped too).

The limitations of the First Amendment are important to understand because when it comes to a person’s employment (unless you are employed by the government), involvement in organizations and associations, businesses and partnerships, and other public activities, freedom of speech operates in a very different way. Words and how they are expressed, to whom they are expressed, and where they are expressed can have serious ramifications for which there is no legal protection. As a result, especially in today’s era of social media when everyone’s smart phone can double as an audio or video recording device, it is important to be mindful of the reality that the First Amendment cannot protect you from the public consequences of saying something you may quickly regret.

A definition for “leverage” is a “positional advantage; power to act effectively.” There is an exploited segment of our society which unknowingly possesses an incredible amount of leverage, if it ever organizes and demands its piece of the proverbial pie. That group consists of the collegiate student-athletes in division one sports. If collegiate student athletes, football and basketball players in particular, fully comprehended both the exploitation and leverage inherent in their position, the landscape of college sports could be dramatically and instantly reshaped. The fallout would ripple through academia, the entertainment industry, and professional sports.

Division one athletics is a billion dollar industry. According to ESPN, in 2008, the top forty college athletic programs generated $3.1 billion in revenue, including ticket sales, donations, media rights, and branding. When you expand the calculation and include all division one schools, the revenue was in excess of $5.6 billion. When considering these figures, keep in mind that they are five years old and do not include recently renegotiated television deals and the proliferation of conference specific television networks, as well as the pending implementation of a college football playoff system.

An analysis of the athletes’ share of that revenue is staggering. Time magazine’s blog published an infograph on the gap between what athletes receive and what, in theory, they should receive. The calculations assume that the athletes, the working class of the industry, should receive 50% of revenue. The infograph then allows you to enter a specific division one school and view the shortfall in the student athletes’ share of the revenue. At Penn State, the shortfall per athlete on the football team is $335,258 per year. At Texas, the shortfall is $546,832 per football player per year. Even at Temple, which has a lower national profile athletically, the shortfall is $131,388 per year per member of the basketball team.

Almost all of that money is going to somewhere other than to the player on the field. The athlete is placing his (or her) body in jeopardy and doing so while the institutions pocketing all of the financial benefits provide no long-term insurance or protection. Further complicating the matter is the tome of NCAA restrictions on the athletes’ ability to personally share in the money making machine, supposedly written to promote amateurism. While the school can profit from the sale of an athlete’s jersey, personalized signature, or participation in promotional materials, the student can do no such thing. The athlete is limited to a scholarship.

While a scholarship is tremendous and should not be undervalued in any way, it also should not be overvalued. The issue is not whether a student athlete should receive a scholarship; it is whether a scholarship is enough. The student athlete should be entitled to more. Imagine if the Penn State football player had the cumulative four year shortfall of $1.34 million available after graduation to fund graduate or professional school, create a start-up company or non-profit service organization, allow for a year or two of service in Africa, help care for a sick family member, and/or buy a home.

How could the athletes create the leverage needed to protect their futures? Simple, all they need to do is to refuse to take the field. Imagine what would happen if right before this year’s National Championship game the players on both teams refused to take the field. The players would instantly have the attention of the executives at ESPN, the NCAA, the sponsors, the conferences, and the universities. Without the players, the billion dollar machine stops. So when you turn on the television this Saturday night for the game of the week, stop and consider where the money goes. Stop and wonder what would happen if the players organized. Stop and imagine what an athlete could do with both an education and significant funding to support post-academic pursuits. Both the motivation and leverage for change quickly becomes obvious.

Late yesterday afternoon, Federal District Judge Susan Richard Nelson of the District of Minnesota granted an injunction on behalf of class of NFL players and against the National Football League blocking the league’s lockout (court opinion: http://a.espncdn.com/photo/2011/0425/judge_nelson.pdf). Over the past day I have encountered some questions regarding injunctions. The goal of this article is to explain the basics of injunctions and why Judge Nelson granted one in Brady, et. al. v. National Football League, et al.

What is an injunction?

An injunction is an equitable remedy. It is an order of court that requires a party to a lawsuit to either to do, or to refrain from, certain acts. It must be specifically requested.

What is an equitable remedy?

Most state and federal courts of general jurisdiction in the United States evolved from the English court system (the only notable exception are the courts of Louisiana, which was originally a territory of France, and, thus, are based on the French court system). In England, two types of courts developed: (1) court of law (common law courts); and (2) court of equity. Courts of law were based on the evolving common law and were designed to provide parties with redress for wrongs. For example, you could sue in a common law court for monetary damages for breach of a contract. Generally speaking, the money damages a person receives in a court of law are classified as ‘legal remedies.’ Both judges and juries can determine legal remedies.

Not every case, however, boiled down monetary damages and, as a result, you had people petitioning to the King for appropriate relief. Edward I was overwhelmed (and annoyed) with these (often petty) petitions and, therefore, granted the Lord Chancellor jurisdiction over these matters. Over time, this responsibility developed into a second court system within England. The Court of the Chancery had the power to issue non-economic relief, such as injunctions, writs, and specific performance. These forms of relief are classified as ‘equitable remedies.’ Only judges can determine equitable remedies.

In the United States, courts of law and courts of equity have merged. Judges now have the power to grant both legal and equitable remedies. The restriction remains, however, that only judges can grant equitable remedies.

What do you need to prove to obtain an injunction?

In our legal system, injunctions are rare and difficult to obtain. The principles driving the development of our system favor a court system that retrospectively rights wrongs, rather than a system that prospectively prevents the wrongs from ever occurring. Under our system of separation of powers, we must remember that the Legislature, not the Courts, is empowered with legislating behavior. As such, Courts, who are backed by the Executive Branch (e.g., our police forces and military), are only to step-in and directly govern the behavior of individuals or groups in the most serious of circumstances. Therefore, the test for obtaining an injunction is very exacting.

To obtain an injunction, you must prove the following:

(1) the injunction is necessary to prevent irreparable harm;
(2) the irreparable harm cannot be adequately compensated with money damages;
(3) greater harm will be caused by not granting the injunction than actually granting the injunction;
(4) the injunction will not substantially harm other parties to the legal action;
(5) the injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct;
(6) the underlying activity is actionable and the right to relief is clear (in other words, you are able to sue over the activity and you are likely to win your case);
(7) the injunction can be reasonable tailored to ensure that the offending activity will be halted; and
(8) the injunction will not adversely affect the ‘public interest.’

Why were the players granted an injunction?

There are clear laws and rules in this country governing the relationships and interactions between labor unions and employers. In fact, the federal government setup a specialized administrative court, governed by the National Labor Relations Board, to resolve disputes arising under these laws and rules.

Initially, the players in the league were unionized. The Union representatives were bargaining on behalf of every player in the league. All of the players collectively bargained together and, theoretically, would have entered into the same general framework to determine the pay and benefits of each player moving forward.

At 5:00pm on March 11, however, the players filed to decertify as a union. Essentially, the players dissolved the union and lost the ability to bargain collectively as a block. Rather, each individual player is now free to bargain an individualized deal with his respective team. The result, superficially, is the loss of leverage over the employer, but, given the circumstances, in reality, the result is chaos for the league.

The Supreme Court has ruled that according to federal Anti-Trust laws, each team is an individual entity. As a result, the teams cannot work together (or collude, depending on your perspective) to control the contracts needed for the hundreds of free agents that must now be signed or the execution of the current agreements. The teams can no longer treat the players collectively.

The lawsuit before Judge Nelson, however, accuses the league of just that: Anti-Trust violations based on the treatment of the players as a collective unit, rather than individuals. What is the violation? The lock-out. Lock-outs are only permitted against labor unions.

Knowing this, why would the League still lock out the players? The League contends that the players’ decertification was a sham. As a result, they have filed a parallel action with the Nation Labor Relations Board accusing the players of violating the relevant Labor Union laws.

Nevertheless, Judge Nelson rejected this argument and, without definitively ruling on the question of law (which will be decided later this summer), granted the injunction. Judge Nelson accepted the players’ case which conformed with the test described above for obtaining an injunction. You can review Judge Nelson’s ruling for her detailed discussion of each prong of the test and why the players succeeding in obtaining the injunction.

The decision is revealing, however, because, as I discussed, the players needed to prove that “the underlying activity is actionable and the right to relief is clear (in other words, you are able to sue over the activity and you are likely to win your case).” By granting the injunction, Judge Nelson is tipping her hand and letting the League know that, based on all the evidence presented and the arguments made before her, her final ruling will most likely be in favor of the players. In other words, she will most likely find that the League has committed a federal Anti-Trust violation.

What do you think? Any questions about injunctions? Leave a comment below and let me know!

(Note: While this post will focus on baseball, the message is applicable to all sports.)

The debate over how to handle steroid users in sports was renewed the past week with the conclusion of the Barry Bonds trial and the sudden retirement of Manny Ramirez following his third positive test. The central focus of the debate is how to handle these confirmed or suspected users of steroids when they become eligible for the Hall of Fame. The list of confirmed users include names which also appear at, or near, the top of some of baseball’s most hallowed statistical rankings.

This past week, Tim Kurkjian of ESPN touched on the dilemma voters for the Hall of Fame now face. How do you vote for players who cheated the game and artificially inflated their impact on its history? But at the same time, these players did have a tremendous impact on the game so what damage is done to the integrity of the Hall of Fame if these players if these players and their stories are absent from those hallowed halls? What if the single-season and career homerun leader is missing? Or what if one of the most dominant pitchers, , if not the most dominant pitcher, of the steroid era is missing?

Fortunately, in time, baseball will be able to handle this dilemma. The Hall of Fame, while being an exclusive members only club, is also a museum. A wing of the Hall can tell the story of the steroids era. It can include the memorabilia — the 762nd homerun ball, a guy’s glove, or the cleats he wore when he reached some statistical milestone. It can include the names on the Mitchell Report. It even, if the writers want, can allow the steroid users themselves to join the ranks of the greats because these players are, afterall, the best of their era. The Hall will survive this scandal.

What will not survive as easily is the continuity of the history. Baseball is a game of numbers — of defined benchmarks that a player must reach in order to gain immortality. Those numbers, however, are no longer so easily definable. The career homerun mark pre-steroids is 755 by Hank Aaron. The steroids era mark is 762 by Barry Bonds. They’re now apples and oranges. Which do we celebrate going forward? A rookie pitcher with dreams of sports immortality — is he chasing Roger Clemens with 7 career Cy Young awards or Randy Johnson with 5 career Cy Young awards? The measuring stick is now broken.

This may seem trivial to the casual fan, but to those of who are passionate about our sports, the uncertainty robs us of a great deal of enjoyment. After you watch sports for long enough, your interest boils down to two things: (1) your team; and (2) greatness. Of course I want to see the Phillies win, Ryan Howard or Chase Utley win an MVP, and Halladay throw a perfect game. What is at least equally exciting, however, is seeing something no one has ever seen before or the attainment of greatness. When a player hits his 62nd homerun of the season, should he be celebrated as the single-season homerun leader? Or is he still far short of Barry Bonds’s mark? Is he the greatest? Or second best?

The continuity is broken. We cannot really compare the Babe to Bonds, Cy Young to Clemens, nor Schmidt to ARod. Even if such comparisons were previously just purely intellectual exercises by sports’ nerds or difficult given changes in the game, stadiums, and player training –they are now empty and impossible, and I for one feel cheated.

Cheating in pro sports is no longer surprising. We’ve lived through the steroid era and witnessed Spy-gate (New England Patriots). The fact that most pro athletes are not role models is tending towards fact rather than opinion. We know this because of Tiger Woods, Roger Clemens, and Michael Vick. What does continue to surprise me, however, is the media’s reaction to both cheating and immoral behavior. The sports media is more interested in glorification and instant gratification than accountability and journalism.

The perfect case study to illustrate my argument is how the media has handled the Cam Newton (QB at Auburn) controversy. It has been alleged that Cam Newton has violated multiple NCAA rules, as well as the law. (1) It has been alleged that while at Florida backing up Tim Tebow, Newton cheated on at least one major academic paper. Allegedly, when the papers were turned in, Newton erased the name off another student’s paper and wrote-in his own name, then submitted the paper as is his own. When the professor and the original author discovered the cheating, Newton undeservedly was offered a chance to redo the paper. This time, Newton turned in a paper which the professor discovered was purchased off the internet. (2) It is alleged that while at Florida Newton stole another student’s laptop. (3) It is alleged that Newton and his father, prior to transferring to Auburn, sought over $100,000 in illegal payments from college boosters in exchange for his enrollment at the booster’s institution.

Newton’s Auburn Tigers currently are ranked second in the BCS standings and poised to play for the national championship. Newton is also the leading candidate for the Heisman Trophy, college football’s highest individual honor. The media is loving Cam Newton. ESPN’s analysts and writers cannot heap enough praise on this kid. Some are even proclaiming “Tim Tebow, who?” Newton’s story, like his play, is full of excitement, drama, deceit, and achievement. It’s pure entertainment. The national talking-heads make it clear that they are cheering for Newton because everyone loves and appreciates a redemption story.

What’s missing, however, is the responsibility that should precede redemption. How can someone who has yet to claim responsibility or suffer retribution redeem himself? Nevertheless, lets assume you can redeem yourself without first accepting responsibility, can a person really redeem himself for cheating and breaking the law off-the-field simply by performing historically on-the-field?

After cheating and stealing (allegedly) at Florida, Newton fled to a junior college for a year in order to avoid punishment and a suspension. Cam Newtorn has yet to address the play-for-pay claims against him while evidence collected by FBI agents mounts. Rather, he’s just soaking in the hype and love as we approach Heisman weekend in a few weeks.

There is nothing redeeming in this story! Cam Newton is entirely distinct than what we are witnessing with Michael Vick (who in my book is on his way to redemption, but not completely there yet). Vick pled guilty to the allegations against him. He served time in a federal prison. He experienced a bankruptcy. He trained hard and returned to the NFL. Now, while he is playing well on-the-field, his true redemption is occurring off-the-field. He continues to educate others on the mistakes he made, handled the Kolb-Vick starting controversy with humility and respectfulness, and is quietly and humbly playing hard while appreciating his second opportunity.

Many of the “journalists” who equate Newton with Vick and have the privilege voting for the Heisman have already gone on record as saying that the off-field allegations will not be a factor when they crown Newton in New York (at the Heisman Trophy Ceremony) in a few weeks. They are going to vote for Newton and just let “the process” work out the rest. Well, what happened to journalism in this country? Journalism used to be driven by investigative work. Journalism was part of “the process.” Why is ESPN promoting and forgiving this kid? Where are their standards? Does entertainment outweigh the myth of the division 1 student-athlete and the respect of Newton’s victims? Sure seems that way in Bristol (ESPN HQ) these days.

The big question in Philadelphia this week is whether to celebrate or vilify Donovan McNabb when he returns to Lincoln Financial Field on Sunday as a Washington Redskin. Should the fans cheer or boo when he is introduced to the reputable Philadelphia crowd? My answer? Neither.

I believe the most fitting tribute to McNabb legacy is a polite golf clap. It suits the moment perfectly. It’s respectful, positive, but not over the top.

Donovan McNabb did a lot for the Eagles franchise. He provided stability at one of the most important individual positions in sports. He quarterbacked the team to five NFC Championship games and one Super Bowl. He set franchise records for production. He did a lot for the Philadelphia community. He was a squeaky clean guy who never made it rain in a strip club, sexually assaulted a college co-ed, or got busted for drunk driving. He represented this city well during his interviews and guest star appearances with the national talking heads. He was a good quarterback. Therefore, he does not deserve to get booed.

At the same time, he was good, but he was not great. He may have had sparks of something special, especially when he was a scrambling quarterback before he shredded his knee twice, but on the whole, he was not an elite quarterback, nor should he be remembered or treated as a hero. Here are my top reasons why:

(1) Shrunk In the Biggest Moments – Yes, Donovan McNabb made one Super Bowl and five NFC Championship games. Out of those six games, however, he only rose to the occasion once. Once! Three times in the NFC Championship game the Eagles went in as the favorite and three times they lost, twice after an anemic offense performance and once with the ball in McNabb’s hands and the opportunity to win the game. In 2002-2003 they lost 27-10 at home to the Tampa Bay Buccaneers. The next year they lost 14-3 to the Carolina Panthers again at home. In 2008-2009, they lost to the Arizona Cardinals 32-25.

Remember the final two minutes of the Super Bowl? McNabb blew chunks in the huddle (allegedly). His performance should appear in the dictionary next to the definition for “dazed and confused.” He again had the opportunity to win the game but acted with no sense of urgency, clearly overwhelmed by the moment. There is no way you can classify how he performed as “great.”

McNabb is no John Elway. McNabb is no Joe Montana. McNabb isn’t even Jim Kelly who won his four Conference Championship game appearances.

(2) Never Took Responsibility – That’s not completely true. He took responsibility for the glory. McNabb thinks he is a great quarterback and the savior of Philadelphia football. What is true, however, is that he never took responsibility for the shortfalls. For example, after the loss to the Cardinals, when McNabb started at mid-field in the last minute of the game but was unable to progress the ball, he blamed the defense. The guy bounced ball off the ground in front of receivers more than a pee-wee football quarterback, yet it was the young receivers who could not hang onto the ball. It was always, “I could have done better… if I was given more weapons.” It was always excuses and deflected responsibility.

(3) Ran His Mouth Too Much – McNabb never understood Philadelphia. Philadelphia wants championships, wins, and get it done attitude. There are no moral victories. Guys like Chase Utley who say as little as possible but run out every ground ball, lead the league in hit-by-pitches, and consistently show-up in the big moments are heroes in this city.

McNabb was always clowning around. Remember before the playoff game with the Cowboys last year? Him doing that silly dance and then falling completely flat during the game. All the interviews with the calculated comments and smiles that would make a politician envious. That’s not Philadelphia.

(4) Played the Race Card – This one is talked about the least, but, on a personal level, may bother me the most. Too often when McNabb came under criticism, he hinted at race being factor. At times, when he felt under-appreciated, he explicitly played the race card. Remember him saying that TO committed a “black on black crime,” because TO said they would have won the Super Bowl with Brett Favre as our quarterback? Remember him saying that Peyton Manning and Tom Brady are celebrated and viewed positively not because they won Super Bowls and MVPs, but because they are white?

McNabb never got it. Ironically, Vick, the guy McNabb was responsible for bringing to Philadelphia, is proof of how wrong McNabb was about race being a factor. This city was adamant about starting Vick, a black quarterback, over Kolb, a white quarterback. The national media mirrored the sentiments of our city. Did this city and nation have a sudden awakening since McNabb left last spring? No. It’s not that McNabb was never elevated to greatness because he was black, he wasn’t elevated to greatness but he wasn’t great.

So on Sunday, lets not boo McNabb. Lets not cheer him. Lets politely clap for him, tip our cap, and let our defense prove yet again just how great he isn’t.